Graham v The Queen [2016] HCA 27

HIGH COURT OF AUSTRALIA

FRENCH CJ, KIEFEL, BELL, NETTLE AND GORDON JJ

MARK JAMES GRAHAM APPELLANT

AND

THE QUEEN RESPONDENT

Graham v The Queen [2016] HCA 27 20 July 2016 B14/2016

ORDER

Appeal dismissed.

On appeal from the Supreme Court of Queensland

Representation

P J Davis QC with J R Jones for the appellant (instructed by Grigor Lawyers)

P J Callaghan SC with V A Loury for the respondent (instructed by Director of Public Prosecution (Qld))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Graham v The Queen

Criminal law – Appeal – Directions to jury – Where appellant convicted of attempted murder after firing shots during confrontation with man with knife – Where appellant relied on defence of self-defence under ss 271(1), 271(2) and 272(1) of Criminal Code (Q) – Where prosecutor suggested in closing address existence of "consensual confrontation" negated self-defence – Where trial judge did not direct jury that no evidence of consent – Where no redirection sought by defence counsel on this issue – Whether trial judge failed to properly direct jury as to self-defence – Whether trial judge erred in failing to direct jury as to defence of mistake under s 24 of Criminal Code.

Words and phrases – "assault", "consensual confrontation", "consent to assault", "mistaken belief", "self-defence".

Criminal Code (Q), ss 24, 245, 271, 272.

FRENCH CJ, KIEFEL AND BELL JJ. Introduction The appellant was convicted after trial before a judge and jury in the Supreme Court of Queensland of attempted murder and unlawful wounding with intent to maim. The indictment expressed the offences as contrary to ss 306(a) and 317(b) and (e) of the Criminal Code (Q) respectively. The convictions arose out of an incident at the Robina Town Centre at the Gold Coast in Queensland on 28 April 2012. The incident leading to the charges involved a confrontation between the appellant and one Jacques Teamo ("Teamo"). In the course of the confrontation, Teamo produced a knife and the appellant produced a hand gun and fired two shots. One of the bullets struck Teamo in the arm, albeit without inflicting a life threatening injury. The other struck and injured an innocent bystander, a shopper in the complex, Kathy Devitt. The appellant was sentenced to 12 years and three months imprisonment for the offence of attempted murder, seven years for the offence of unlawful wounding with intent to maim and one year and six months for the offence of unlawful possession of a weapon, to which he had previously pleaded guilty. All sentences were to be served concurrently. The appellant appealed to the Court of Appeal of the Supreme Court of Queensland against his convictions and applied to that Court for leave to appeal against the sentences. The application for leave to appeal against sentence was refused. His appeal against conviction was based upon allegedly inadequate directions by the trial judge as to his defence of self-defence. In particular, he complained of the trial judge's direction in relation to a suggestion by the prosecutor that Teamo's alleged production of the knife prior to the appellant shooting Teamo was part of a "consensual confrontation" and therefore not an assault. He also argued that the trial judge failed to leave to the jury the defence of honest and reasonable but mistaken belief as to fact under s 24 of the Criminal Code based upon a proposition that the appellant may have mistaken Teamo's conduct for an assault by threatened application of force and acted accordingly. The appellant was granted special leave to appeal in this Court on those questions on 11 March 2016. For the reasons that follow the appeal should be dismissed. Evidence as to relevant facts The evidence relevant to the grounds of appeal was referred to in the judgment of Atkinson J in the Court of Appeal, with whom Morrison JA and Applegarth J agreed. It may be summarised briefly. On 28 April 2012 the appellant went shopping at the Robina Town Centre with members of his family. Teamo was at the shopping centre at the same time with his two young sons. He and the appellant were members of rival motorcycle clubs. Both were armed. The appellant was carrying a loaded hand gun in a pouch bag on a belt around his waist. Teamo was carrying a flick knife in a shoulder bag. Teamo entered a Sony store with his younger son. His older son was pushing a shopping trolley behind him. The appellant walked past, saw Teamo, stopped, paced up and down outside the store entrance, felt for something in his pouch, then entered the store. He walked around staring at Teamo. Teamo said "What are you looking at?" The appellant then left the store. Teamo said to his older son that he was going to "stab that guy". What he said was not heard by the appellant. Teamo then walked out of the store. He appeared to touch something in his shoulder bag, then followed the direction taken by the appellant. He stopped and gestured towards the appellant and said "What are you looking at? You got a problem?" Both were described by witnesses as puffing their chests and shouting at each other. The appellant walked towards Teamo. As the appellant reached into his bag he dropped a ten dollar note, which a passer-by picked up and gave to him. There was an issue at trial as to who took his weapon out first. At some point Teamo took his knife out and extended the blade, stopped and started backing away. The appellant held his gun in his right hand moving towards Teamo. He pointed it at him and shot him once at close range but not seriously injuring him. Another shot missed Teamo and struck Ms Devitt. Bullet fragments lodged in her right hip. It is not clear which shot hit which person. After firing, the appellant walked away holding his gun in his hand. Teamo returned to the entrance of the Sony store where his sons were waiting and left the store. The statutory provisions The principal issue at trial turned on the defence of self-defence. The burden lay upon the prosecution to negate self-defence beyond reasonable doubt. Three different types of self-defence, referred to in ss 271(1), 271(2) and 272 of the Criminal Code, were in issue. They were self-defence against an unprovoked assault, self-defence against an unprovoked assault where there is a reasonable apprehension of death or grievous bodily harm and self-defence against a provoked assault. Section 271(1) provides that: "When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm." Section 271(2) applies where "... the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that the person can not otherwise preserve the person defended from death or grievous bodily harm ...". In those circumstances, "it is lawful for the person to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm." As appears from the terms of s 271(1) and (2), a person who has provoked an assault cannot invoke the defence of self-defence under either of those provisions. Reliance must be placed upon s 272. Section 272(1) provides: "When a person has unlawfully assaulted another or has provoked an assault from another, and that other assaults the person with such violence as to cause reasonable apprehension of death or grievous bodily harm, and to induce the person to believe, on reasonable grounds, that it is necessary for the person's preservation from death or grievous bodily harm to use force in self-defence, the person is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous bodily harm." It was common ground at the trial that the term "provoked" in each section attracted the application of the definition of "provocation" in s 268(1), which provides: "The term provocation, used with reference to an offence of which an assault is an element, means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person ... to deprive the person of the power of self-control, and to induce the person to assault the person by whom the act or insult is done or offered." The application of that definition was not in issue in this appeal. In Queensland it has been held to be applicable to the term "provoked" in s 271. As appears below, however, there was confusion about its application in the closing address of counsel for the prosecution, who linked it to a non-existent defence of provocation on the part of the appellant. It is necessary to the defence of self-defence under each of ss 271 and 272 that the person claiming its benefit was "assaulted". That requirement engages the definition of the term "assault", which appears in s 245 of the Criminal Code and includes: "(1) A person ... who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person's consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person's purpose, is said to assault that other person, and the act is called an assault." That limb of the definition, which was applicable in this case, requires that the act constituting the assault be done without the consent of the person assaulted. Obvious examples of consensual application of force which is therefore not an assault include surgery, dental treatment and sporting matches involving deliberate physical contact. Relevantly to this appeal, a threat by one person to apply force to another can constitute an assault. The defence of self-defence is not available if the threatened application of force was done with the consent of the person threatened. In that event there would be no assault. Counsels' closing addresses Counsel for the prosecution commenced his closing address on the issue of self-defence with the observation that: "Now, there's three central propositions that I want to put to you as to why you'd accept, beyond reasonable doubt, that none of the self-defence provisions apply. The first is that both the defendant and Teamo really, at least, started behaving as badly as each other, that what was occurring was, at least until the gun was pulled out, a consensual fight or consensual confrontation — conflict. From the time the gun was pulled out the defendant became the aggressor. He was not acting in self-defence. He was the aggressor. And flowing from the proposition that it was a consensual fight or conflict is that the production by Teamo of the knife was simply either part of that consensual assault — part of that consensual fight or did not raise enough provocation to require actions in self-defence." There were other references to a "consensual confrontation" in counsel's closing submission. At one point he described the incident as having started as a "consensual confrontation" and said: "That's not an unlawful assault. To be unlawful, there must be no consent." Counsel then went on to say that: "The production of the knife if it was not part of that consensual confrontation did not, in the circumstances, provide provocation for a man to lose his self control." The reference to consensual confrontation was at best puzzling given the state of the evidence. Its conflation with provocation of the appellant and loss of control on his part, when that was not an issue in the case, was inexplicable. Counsel turned specifically to the concept of assault and said: "In each case, there must be an unlawful — and I emphasise — unlawful assault which provokes the act said to be done in self-defence. As I say, the definition of assault is very important to understand: it doesn't only mean coming into contact; it can also mean — and I'm paraphrasing — a threatened application of force by one to another without the other's consent and in circumstances where the first person is in a position to carry out a threat. A threatened application of force; that's what was happening. They were both in puffing mode. But it must be without consent and they were both in it; they were both happy to be doing that." Counsel continued: "So if the production of the knife itself was not part of that consensual fight, in the circumstances of what had happened, it certainly was not enough for that man to be losing self control when he knew, if not in his hand, sitting at the front of his waist is a loaded firearm. So issues of who pulled the weapon first and that sort of thing may well come into play, but in my submission to you, it was all consensual and it was all puffing. And any threatened application of force at that time was by consent. Once you're satisfied beyond that proposition beyond a reasonable doubt, any threatened application — that any threatened application of force was consensual, the assault is not unlawful and all forms of self-defence will be defeated; they would then no longer have any role to play in deliberations." Counsel for the prosecution then submitted that if the production of the knife was not part of "that lawful assault" it did not in the circumstances amount to "the provocation required to justify the use of force itself." Again, this was a misuse of the concept of provocation which might have conveyed to a jury the proposition that the appellant's actions could not be justified unless he suffered a loss of control in reaction to Teamo's assault. This aspect of the address was not raised in the grounds of appeal in the Court of Appeal. That is perhaps understandable. The compendious direction given by the trial judge included a comprehensive list of questions which the jury had to answer in order to reach the various verdicts open to them. Neither the directions nor those questions disclosed error relevant to the use of the concept of "provocation". Counsel for the appellant initially drew the attention of the jury to Teamo's state of mind as evidenced by his statement to his son that he was going to stab the appellant and his gestures and language when he came out of the Sony store. He observed that there were no words attributed to the appellant that suggested any intention, let alone an intention to kill. Counsel for the appellant submitted to the jury that, quite apart from self-defence, the evidence would not allow them to be satisfied that the appellant intended to kill Teamo or that he intended to maim, disfigure, disable or cause grievous bodily harm to him. The incident involved a "split-second response to an exposed flick-knife leaving little or no time for anything other than an instinctive act of survival." The act of survival was the raising of a weapon and the pulling of the trigger twice in the direction of Teamo. The case, as counsel put it to the jury, was about whether the appellant was acting in self-defence, his submission being that "at the very least, the Prosecution can't exclude self-defence beyond reasonable doubt." In any event, there were "all sorts of problems with identifying the precise state of mind in something that happened so quickly and so instinctively in the circumstances that unfolded." Nothing in the closing address of counsel for the appellant was directed to negative the proposition that the confrontation between Teamo and the appellant was at any stage able to be characterised as "consensual". A fortiori, there was nothing in counsel's closing address to negative the proposition that the asserted unlawful assault by Teamo was consensual. That is not surprising. There was ample foundation for counsel for the appellant to form the judgment that the question whether the assault said to have been committed by Teamo was with the consent of the appellant would not detain the jury more than a moment and that the risk of an adverse finding on that basis was negligible. Although consent was raised by counsel for the prosecution and raised in a confusing way, it was plainly open to counsel for the appellant to form the judgment that it was simply not a real issue in the case. Following his closing address, counsel for the appellant drew to the trial judge's attention an observation in the address of prosecuting counsel that might have left the impression that the failure of the appellant to give evidence could give rise to an adverse inference. The trial judge agreed that he would add an additional sentence to his summing up to deal with that concern. In the discussion of the draft summing up no issue about the character of the incident or any aspect of it as consensual was raised. The trial judge's directions A list of 10 questions setting out a sequence of matters to be found by the jury, and the consequences of such findings for their verdicts, was given to the jury by the trial judge. In that list three questions were posed relevant to the defence of self-defence. None addressed the issue whether any assault by Teamo, necessary to enliven the defence, was consensual. The jury, however, were provided with separate printouts of ss 271(1) and (2), 272(1), 245(1) and 268(1). As noted earlier, the use of the term "provocation" arose only in the context of whether the appellant could be said to have provoked Mr Teamo so as to negative the application of the self-defence provisions in s 271(1) and (2). The trial judge asked the jury to consider whether the appellant was unlawfully assaulted by Teamo and if they were satisfied beyond reasonable doubt that whatever the appellant had done before the shooting constituted provocation of Teamo. His Honour then directed the jury on the question whether the force that the appellant used was not reasonably necessary to make an effectual defence against Teamo's assault. A further question with respect to self-defence under s 271(1) was whether the prosecution had established beyond reasonable doubt that the force used by the appellant was intended and was such as was likely to cause death or grievous bodily harm. The trial judge turned to s 271(2), where the "law recognises that in more extreme circumstances, people can on some occasions, be frightened for their lives and have to use whatever force is necessary to save themselves." Specifically in relation to self-defence under s 271(2) the trial judge said: "The first matter that arises again is whether Mr Graham was unlawfully assaulted by Mr Teamo. Remember what I said to you about the meaning of assault. It doesn't have to involve actual physical assault and a movement or gesture may be enough, or a threat to apply force of any kind under circumstances where the person has actually or apparently an ability to affect a person's purpose can constitute an assault; and, in that context, you'll consider the evidence on the video of Mr Teamo and what is said to be a knife in his hand." The trial judge continued to address s 272. In no part of his directions on the law did his Honour put to the jury that they could find that the defence of self-defence was defeated on the basis that Teamo's alleged assault was not an assault because it was consensual. His Honour did, however, refer to the prosecutor's closing address and his reference to the term "consensual confrontation" as "not an unlawful assault so a self-defence doesn't apply." That and other matters to which his Honour referred were described by him as "matters of interpretation, construction and argument put to you by the Crown prosecutor." In re-directions, the trial judge gave the jury written directions on self-defence. Not surprisingly, there was no application by counsel for the appellant for a re-direction on the question whether the "consensual confrontation" referred to by counsel for the prosecution, and mentioned by the trial judge in the closing part of his address, required elaboration. Nor did he seek a direction that the disqualifying consent had to be related to Mr Teamo's alleged threatened use of the knife, which on the defence case constituted an unlawful assault and thereby engaged the self-defence provisions of the Criminal Code. No reference was made in the summing up or in closing addresses to the defence of honest and reasonable but mistaken belief on a question of fact, provided for in s 24 of the Criminal Code. The appeal to the Court of Appeal The appellant's complaint in the Court of Appeal was that the prosecutor's submission referring to a "consensual confrontation" was "wrong and misleading" and that the trial judge had erred in failing to deal properly with that submission. The trial judge, it was said, should have identified the relevant assault as the production of the flick knife. He should also have directed the jury on the defence of honest and reasonable but mistaken belief about a fact pursuant to s 24 of the Criminal Code. He should have directed them that if the production of the flick knife was not a threatened application of force but the appellant honestly and reasonably mistook it to be so, then the jury had to proceed on the basis that there was an assault. The trial judge, it was said, should then have directed the jury that there would be no assault for the purposes of self-defence only if the appellant consented to the particular assault. There was no evidence of any such consent. The decision of the Court of Appeal The Court of Appeal dealt shortly with the appellant's arguments. The steps in the Court of Appeal's reasoning were as follows: 1. The prosecutor's submissions directed the jury's attention to two alternative findings of fact on the question of whether there was an unlawful assault. The first was that Teamo's knife was drawn before the appellant drew his gun. The second was that the appellant's gun was drawn before Teamo produced his knife. 2. If the knife was found to have been drawn before the gun, the question that arose was whether the mutual threats were part of a consensual confrontation. 3. If the gun was drawn before the knife, the question was whether that was provocation for Teamo to pull out his knife. 4. The Crown prosecutor correctly pointed out that lack of consent was an essential element of the offence of assault. There was no further need for the issue to be addressed by the trial judge and neither counsel asked him to do so whether by way of emphasis or correction. 5. The trial judge directed the jury on the correct legal test as to the meaning of assault and directed them correctly on the relevance of whether it was the gun or the knife that was drawn first, inviting the jurors to make up their own minds about that. 6. No direction in relation to s 24 of the Criminal Code was sought at the trial. There was no evidentiary basis for suggesting that if the production of the knife were not a threatened application of force, the appellant might nevertheless have honestly and reasonably believed it to be so. The contentions The appellant canvassed before this Court essentially the same arguments as were put to the Court of Appeal. The effect of the submissions by counsel for the prosecution at trial had been that there was a consent by the appellant to a "confrontation" comprising a series of events which led up to the shooting. However, the question of consent had to be related to the "assault", which was the threatened application of force constituted by the production of the flick knife. There was no evidence to suggest that the appellant had consented to being threatened with the flick knife or being cut or stabbed. There was no evidence to suggest that the appellant knew that Teamo had a flick knife before it was produced immediately before the shooting. The appellant's submissions focussed upon the prosecutor's address and his characterisation of the conduct of the two men as a "consensual confrontation". He submitted that it was for the judge to properly fashion directions identifying the real issues for the jury and direct them on the necessary legal principles. The judge failed to do so because he did not identify the particular "assault" said to justify the appellant's action in self-defence. Moreover, he gave no direction to the jury as to the concept of consent. The trial judge's reiteration of the prosecutor's assertion that the series of events was a "consensual confrontation between the two actors" distracted the jury from the real issue in the case, namely whether the appellant had made proportionate self-defence to an assault constituted by the production of the flick knife. The appellant complained that the Court of Appeal had misunderstood both the submissions of the prosecutor and the directions of the trial judge. Both had left open to the jury the possibility that the production of the flick knife by Teamo was part of the "consensual fight" or "consensual confrontation" with the result that there was no "assault" by Teamo upon the appellant and that therefore self-defence was not available. On the question of mistake, the appellant argued that if the production of the flick knife was not a threatened application of force but just a brandishing with no threat to cut or stab the appellant, the appellant could honestly and reasonably have been of the mistaken belief that a physical assault was to ensue, such that s 24 of the Criminal Code was engaged. The respondent's submissions relied substantially upon the absence of any relevant objection to the trial judge's direction by counsel for the appellant at trial. The trial judge had concluded his references to the prosecutor's closing address by emphasising that they were matters of "interpretation, construction and argument". It would have been open for counsel for the appellant at trial to conclude that this was sufficient to confine the effect of whatever the prosecutor had said. For the same reason, counsel might have taken the view that the jury should not have had their attention directed back to the issue of "consent". The respondent said it was potentially relevant to ask whether the appellant was involved in a confrontation with Teamo in which there was an implied consent as between them to threaten each other. It was necessary to bear in mind the circumstances. In a forensic situation where the appellant's state of mind was an element of the offences charged, counsel could reasonably take the view that it was better for the jury not to linger upon this aspect of the evidence — the appellant having walked into a shopping centre with a loaded hand gun. Conclusion The contentions can be dealt with in short compass. The Court of Appeal was correct to come to the conclusion that it did. It may be thought surprising that the prosecutor troubled to raise consent to an assault by Teamo as an issue negativing self-defence. It might have been open to treat the engagement between the appellant and Teamo as beginning with a kind of limited and largely blustering exchange involving aggressive statements and gestures. It is not clear, however, how the alleged production of the knife by Teamo could have been treated as consensual by any reasonable jury. Despite the reference to consent by counsel for the prosecution, it was, on the evidence, not a real issue in the case. Counsel for the appellant evidently perceived as much for he did not mention it in his own address nor ask the trial judge for a direction on that question. He, no doubt, had in mind to focus the attention of the jury on the question whether Teamo produced his flick knife before the appellant produced his gun and on the appellant's state of mind in the very short timeframe which, on his case, he had available to respond to the threat from Teamo. There was no misdirection by the trial judge. The relevant provisions of the Criminal Code were put before the jury, including the definition of assault in s 245 which incorporated the requirement of want of consent. In the circumstances of this case, no elaboration of that issue was required nor any elaborate discussion of what counsel for the prosecution had said beyond the rather dismissive observation that it was a matter of argument and interpretation. So far as s 24 of the Criminal Code is concerned, it may be engaged in relation to s 271 although the scope of that engagement is likely to be limited. It is not necessary for present purposes to consider the limits of its application to the defence of self-defence. On the case at trial there was no material upon which the possibility of that defence was engaged. It was not raised by counsel for the appellant and there was no requirement for the judge to direct on it. For the preceding reasons, the appeal should be dismissed.